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再给你点原文，省得你再嘴硬 -- 随便 - (9812 Byte) 2003-7-02 周三, 上午11:44 (121 reads) |
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作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org
Question: “What is Tribal Sovereignty?”
Answer: Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. Although no longer “possessed of the full attributes of sovereignty,” tribes remain a “separate people, with the power of regulating their internal and social relations.” In short, Indians possess “the right . . . to make their own laws and be ruled by them.”
Question: “Can We Sue the Tribe for Damages or Equitable Relief?”
Answer: Probably not. Like other sovereign governmental entities, tribes enjoy common law sovereign immunity and cannot be sued: An Indian tribe is subject to suit only where Congress has “unequivocally” authorized the suit or the tribe has “clearly” waived its immunity (for examples of waiver, see discussion below regarding tribal insurance). There is a strong presumption against waiver of tribal sovereign immunity.
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Moreover, tribal immunity generally extends to agencies of the tribe such as tribal casinos and other business enterprises. As many U.S. citizens flock to tribal casinos and resorts, slip-and-falls and other tort claims arising on tribal reservations have increased. Nevertheless, courts routinely dismiss personal injury suits against tribes for lack of jurisdiction.
Therefore, in considering whether to sue a tribe on behalf of an injured party, you must closely evaluate issues of sovereign immunity and waiver. Unless you can show clear evidence of tribal waiver or unequivocal Congressional abrogation, do not waste your time, your client’s money, or a court’s resources by filing suit. A judge will simply dismiss the plaintiff’s claims for damages for lack of subject matter jurisdiction
Question: “Can We Sue the Tribe to Enforce a Contract?”
Answer: Probably not. Tribes retain immunity from suit when conducting business transactions both on and off the reservation. Generally, a tribe can only be sued in contract if the agreement explicitly waived tribal immunity; a waiver will not be implied. Nonetheless, the U.S. Supreme Court recently held that a contractual agreement to arbitrate disputes constitutes a clear waiver of immunity.
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Question: “Can I Sue the Tribe for Employment Discrimination?”
Answer: Probably not. Both Title VII and the Americans with Disabilities Act (ADA) expressly exclude Indian tribes. Similarly, the Age Discrimination in Employment Act (ADEA) has been held inapplicable to tribal employers. Tribes are also immune from suit under 42 U.S.C. 1983. Likewise, state discrimination laws do not apply to tribal employers
Question: “Can I Sue the Tribe for Violation of Labor and Employment Laws?”
Answer: Maybe. The circuits are split regarding the application of federal regulatory employment laws to tribal employers. The Tenth and Eight Circuits have refused to apply to tribes such laws as the Occupational Safety and Health Act (OSHA), the Employee Retirement Income Security Act (ERISA), the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA), because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance.
Conversely, the Ninth, Seventh and Second Circuits have applied OSHA and ERISA to tribes, and the Seventh Circuit leans toward application of FLSA to tribes, reasoning that such statutes of general applicability govern tribal employment activity because Indian tribes are not explicitly exempted from the laws. Nevertheless, state labor laws and workers’ compensation statutes remain inapplicable to tribal businesses.
http://www.hhindianlaw.com/ReservationsofRight.htm >Reservations of Right. A Practitioner’s Guide to Indian Law
作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org |
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